Yesterday, the U.S. Court of Appeals for the Third Circuit affirmed an award of black lung benefits in a case that embodies two established principles in black lung benefits law.
In Bud Davis Trucking v. Director, OWCP [Phipps] (decision here), the employer challenged the Department of Labor’s award in favor of John Phipps (who passed away while his claim was pending) and his widow, Margaret Phipps. The employer essentially argued that the ALJ misweighed the medical evidence and did not clearly recognize negative radiography readings by the employer’s experts, Dr. Fino and Dr. Goodman.
In an opinion by Judge Sloviter (joined by Judges Smith & Jordan), the court rejected the employer’s arguments. The court held that the ALJ’s award of benefits was supported by substantial evidence and that the ALJ’s and Benefits Review Board’s decisions were “well-reasoned.”
The Third Circuit’s decision is an unpublished, nonprecedential opinion, but it captures many principle of black lung benefits law.
The case is a 15-year presumption case. It appears that the employer did not challenge the invocation of the presumption before the Third Circuit. The employer did challenge invocation before the Board, which held that even though Mr. Phipps spent his 36-year career driving trucks on surface mines, Mr. Phipps’s answer to a questionnaire and Mrs. Phipps’s testimony proved that Mr. Phipps’s working conditions were “substantially similar” to underground-mine conditions. (The Board’s decision which includes details of the evidence on dust exposure but does not apply the current “regularly exposed” standard is available here.)
The Third Circuit’s opinion consists of two basic holdings:
First, the court noted that the ALJ—carrying out the role of fact finder—had the discretion not to credit Dr. Fino and Dr. Goodman and instead to credit Mr. Phipps’s treating physician. Because the Court defers to fact finders when weighing medical evidence, the court affirmed. As the court said: “We can add little to the thorough discussions of the ALJ and BRB. We note that Petitioners’ attempts to undermine the ALJ’s findings by pointing to the opinions of Drs. Goodman and Fino ignore the ALJ’s role as fact finder and the responsibility of this court to ‘defer to the ALJ’s evaluation of the proper weight to accord the evidence, including conflicting medical opinions.'” (quoting Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 322 (4th Cir. 2013)
Second, once the ALJ determined that the employer did not rebut the presumption of pneumoconiosis, the ALJ was entitled to give less weight to the causation opinions of those physicians whose opinions did not find pneumoconiosis. The court quoted its previous decision in Soubik v. Director, OWCP, 366 F.3d 226, 234 (3d Cir. 2004): “[c]ommon sense suggests that it is usually exceedingly difficult for a doctor to properly assess the contribution, if any, of pneumoconiosis to a miner’s death if he/she does not believe it was present.”
These two holding are well-established in black lung benefits law. Yesterday’s opinion shows the continuing validity of these principles and the difficulty of succeeding on appeal on issues involving the weight given to medical evidence.
Congratulations to Cheryl Cowen (who represented Mrs. Phipps before the Third Circuit) and Lynda Glagola (who represented Mrs. Phipps before the Benefits Review Board and ALJ). The Department of Labor’s Solicitor’s Office did not participate in the appeal.